6.  The applicant was born in 1981 and at present lives in Vienna.
7.  On 9 October 2010 he arrived in Austria via Greece and Hungary and lodged an asylum application.
8.  On 5 January 2011 the Federal Asylum Office (Bundesasylamt) declared that Hungary had jurisdiction regarding the asylum proceedings pursuant to Council Regulation (EC) No 343/2003 (the “Dublin II Regulation”, hereinafter the “Dublin Regulation”) and therefore rejected the applicant’s asylum application under section 5 of the Asylum Act 2005. It also ordered the applicant’s transfer to Hungary. The applicant did not lodge an appeal against that decision.
9.  Subsequently, the applicant went into hiding and thwarted an attempt to detain and forcibly transfer him planned for 5 May 2011.
10.  However, on 21 December 2011 the applicant was detained in Vienna. On 22 December 2011 the Vienna Federal Police Authority (Bundespolizeidirektion Wien) ordered the applicant’s detention with a view to his forced transfer to Hungary.
11.  On 30 December 2011 the applicant lodged a second asylum application that had no suspensive effect in relation to the valid transfer order. He referred to the Asylum Court’s own practice at that time as regards the transfer of asylum-seekers to Hungary and to the pertinent reports on reception conditions and access to asylum proceedings there (see below).
12.  On 2 January 2012 he also lodged a complaint against the detention order, referring to his second asylum application. He referred to a decision of the Austrian Asylum Court (Asylgerichtshof) of 1 December 2011 in which the Asylum Court had granted suspensive effect to an appeal lodged by an Algerian asylum-seeker, stating that a real risk of a violation of the European Convention on Human Rights could not be excluded in case of the transfer of asylum-seekers to Hungary under the Dublin Regulation. The Asylum Court had based its reasoning on a letter from the Austrian office of the United Nations High Commissioner for Refugees (“UNHCR”) dated 17 October 2011 concerning detention conditions for asylum-seekers in Hungary and the risk of refoulement to Serbia (see paragraphs 32-36 below).
13.  On 5 January 2012 the Vienna Independent Administrative Panel (Unabhängiger Verwaltungssenat Wien) dismissed the complaint against the detention order as unfounded. It stated that the order for the applicant’s detention with a view to his transfer had been issued in accordance with the law.
14.  On 10 January 2012 the Administrative Court (Verwaltungsgerichtshof) dismissed the applicant’s motion for his complaint to be granted suspensive effect. It stated that it would only decide upon a complaint against an order for detention with a view to forced transfer and not on the lawfulness of any transfer to Hungary. However, it concluded that the immigration police (Fremdenpolizei) would in any event have to refrain from transferring the applicant to Hungary – even if the order was itself valid – if the current situation in Hungary for individuals transferred there under the Dublin Regulation would breach Article 3 of the Convention.
15.  On 9 January 2012 the applicant also lodged an application with the Vienna Federal Police Directorate (Bundespolizeidirektion Wien) as the competent immigration police authority, asking it to establish that his transfer to Hungary would constitute a risk for him within the meaning of section 50(1) or (2) of the Immigration Police Act (Fremdenpolizeigesetz, see paragraph 26 below). On the same date, the Federal Police Directorate rejected the application under section 51 of the Immigration Police Act, stating that such an application would only be allowed in the course of proceedings in which an order prohibiting the recipient from returning to Austria (Rückkehrentscheidung), an order for deportation (Ausweisung) or an order prohibiting the recipient from residing in the country (Aufenthaltsverbot) had been rendered. However, no such proceedings were currently pending against the applicant, which was why the request had to be rejected.
16.  The applicant also lodged an application for the transfer order to be lifted with the immigration police. Those proceedings are still pending, as are two further sets of proceedings: one concerns the applicant’s detention with a view to his forced transfer and is pending before the Administrative Court, the other concerns his second asylum application and is pending before the Federal Asylum Office.
17.  The applicant’s forced transfer to Hungary was again scheduled for 12 January 2012. On 11 January 2012 the Court applied an interim measure under Rule 39 of the Rules of Court and requested the Austrian Government to stay the applicant’s transfer to Hungary until further notice.